Civil Asset Forfeiture Is Big Business

By Sam Jacobs, on December 28th, 2018

History

Civil asset forfeiture started on the open seas. Law enforcement agencies seized goods carried by pirate ships. Boats carrying gold and supplies were a prime target. Bringing these issues to the courts wasn’t practical, so the items were simply taken. No law, no recourse. Asset forfeiture happened more than our history books would like us to believe. Judges ruled in court and felons surrendered their goods, even when they weren’t in attendance.

The Civil War
dismissed the rights of Confederates and their supporters. Their property was
seized without due process because of their political leanings.

The Prohibition
Era permitted seizure of bootleggers’ property. Innocent owners were also targeted
if illegal activity was suspected. The war on drugs presents a similar situation.

Modern Cases

In 1984, President
Ronald Reagan
passed the Comprehensive Crime Control Act, which
allowed police to keep the property seized.
The police began to seize property for the purpose of setting up an asset
forfeiture fund, designed to fund police departments. Seeking criminal
convictions became less important.

Bennis v.
Michigan, the 1996 landmark Supreme Court case, changed everything.
The Justices declared that being an innocent owner was not enough to recover
seized assets.

Policing for Profit

Policing for profit is big business. Funds raised from forfeiture have brought in billions of dollars since the late 1980s. In 1986, asset seizures were valued at $93.7 million. In 2004, property and assets totaled $567 million; by 2005, it reached $1 billion. By 2010, civil asset forfeiture hit $2.5 billion. The assets came from over 15,000 cases, only 11,000 of which were civil cases.

Federal
forfeitures also bloomed. From 1985 to 1991, federal forfeitures climbed by
1,500 percent. The Justice Department raked in $27 million in 1985 and reached
$644 million in 1991. In 1996, the receipts tallied over $1 billion. By 2008, it hit the $3.1
billion mark.

Tennessee
has claimed its share of forfeited funds and property. The legislature has
begun to investigate the amount of money pouring into the state. Interstate 40 has been dubbed a “a major
profit center” by the Nashville news. Police are compared to gangs amid turf
wars, fighting each other to claim the cash taken at traffic stops. Police are
threatened with losing their jobs if they don’t bring in enough cash during
their shifts.

Encouraging Bad Behavior

Civil asset
forfeiture is often called legalized theft. Police can seize assets with little
to no cause. Those assets are used without discretion, only encouraging ongoing
bad behavior. A 1994 study showed that some task forces delay making drug busts
to increase the amount of assets taken. A 2001 Journal of Criminal Justice published
a study of 1,400 police departments. The study showed that 50% of the departments
surveyed claimed civil asset forfeiture was “necessary as a budget supplement.”

Civilian Targets

The original
purpose of asset forfeiture was to stop criminals and criminal activity without
having to prove guilt. Arresting pirates and drug smugglers were one thing,
taking Grandma’s jewelry because it could be used as currency is another. The pirates
and drug smugglers are criminals; Grandma crochets scarves while watching afternoon
game shows.

The number of civilians being targeted – without any evidence of wrongdoing – has grown exponentially. The civilians may not even be suspects in criminal activity, such as money laundering or drug-related crimes. People can be targeted at a routine traffic stop or when fishing without a license.

A Day in Court

An innocent person can pursue the matter in court, but may have little chance of winning. The defendants must prove that they are innocent and are not allowed to have a lawyer. The defendant must also prove that they are innocent of any crime. That is the opposite of what happens in a criminal case, where the prosecutor bears the burden of proof. Aside from lacking legal knowledge, many people don’t go to court because they can’t afford it. In some states, it can take up to a year to see a judge; others require the defendant to pay the state’s legal fees. Most cases are decided because people don’t have money or the will to fight.

Texas Appleseed, an advocacy group for criminal justice reform, has stepped up to help civilians faced with asset forfeiture. The group has created a toolkit showing people how to fight back in court. It contains sample pleadings that can be customized to suit the defendant’s case as well as a checklist to use while preparing for court.

Attorney Jacqueline
M. Allen helped the group create the toolkit. “People in civil asset forfeiture
cases do not have the right to court-appointed counsel, so this toolkit is
designed to empower people with the knowledge they need to get their property
back if they cannot afford to hire an attorney and if they cannot find free
legal help.”